we think it represents a liberality to cargo owners not to be found in any heretofore used bill of lading.

We also especially note Article IV, 1, which is plainly intended to modify the rule of absolute warranty of initial seaworthiness insisted on by the Supreme Court of the United States after the passage of the Harter Act; and also Article IV, 4, which is intended to change the present legal rule in English speaking countries that any deviation annuls the contract of carriage.

It will also be noted that the rules are applicable only to that period of time while the goods are on board ship. With respect to the liabilities and obligations of the carrier, either before or after this period, the Harter Act and other applicable legislation, national or State, remain in full force.

We regard the rules as finally formulated at Brussels a beneficial advance upon anything heretofore known in respect of bills of lading. The responsibilities of carriers are materially increased; they will be obliged to cover additional risk by additional insurance. Whether this diversion (in theory at least) of insurance from the cargo owner to the carrier will result in a corresponding increase in freight rates, or whether competition will keep freight rates down is something that only experience can make certain.

But such increase in carrier's responsibilities represents the united and insistent desire of shippers and cargo owners as well as of under writers notwithstanding the fact that the same underwriters will continue to insure the same risks whether the same are assumed by carriers or cargo.

In our judgment these rules are a response to the demand of American as well as other shippers; they are being insistently urged for legislative adoption, especially in Great Britain. We think that for business reasons the American shipowner will be wise to offer as good a bargain to the shipper as do his competitors.

The sous commission having charge of limitation of liability and mortgages did not find it necessary to offer any other written report than to lay before the conference the results of their labors.

This was because the last Brussels Conference (1910) resolved that these two subjects were proper for international regulation, and appointed a committee to formulate avant projets on the subject.

Although a place was reserved for the United States on this committee, no representative of this country ever served.

In 1913 that committtee reported

Exhibit F; being the avant projets suggested. The World War is the reason for taking up in 1922 the report of 1913.

The report accompanying Exhibit F (drawn by M. Lyon-Caen, of France) is already on the files of the Department of State.

The course of events above outlined produced the somewhat unfortunate result that no one acquainted with the maritime jurisprudence of the United States had taken any part in the drafting of Exhibit F.

It seemed to us that there were serious objections to each of the avant projects, partly because of their radical departure from existing American law, and partly because we thought them unlikely to receive approbation from Americans interested in maritime business.

We therefore as to the limitation matter drafted and circulated:

Exhibit G, which sets forth in detail our objections to the principle of the scheme of limitation proposed.

As to the ship mortgage project, we orally explained in plenary session that it was so opposed to the theory of maritime liens as understood and enforced in the United States that we were unable to give our assent even to a tentative scheme which sought to abolish by legislative fiat most of such liens.

We also endeavored to explain the intended operation of so much of our merchant marine act of 1920 as relates to preferred ship mortgages, and suggested that the United States would be interested in a scheme which gave international recognition to mortgages executed in due form and gave to such mortgages a rank or preference superior to most liens-without, however, abolishing or trying to abolish any lawfully arising maritime lien or privilege.

These objections and suggestions were duly considered by the sous-commission which reported:

Exhibit H, a limitation convention;

Exhibit I, a ship mortgage convention.

These reports having been considered in plenary session, certain changes in detail were made; the final results appear in the protocol.2

Appendix, I and II.

The convention on the limitation of shipowners' liability constitutes, even in the form finally adopted in conference, a somewhat radical departure from existing American law on the subject. In some respects it is more favorable to the shipowner; in some respects it is more favorable to the cargo owner; to personal injury and loss of life claimants it is much more favorable than existing law. Under the convention of the protocol the shipowner's liability is, speaking generally, limited to £8 per ton, except as to claims for personal injury or loss of life, with respect to which the shipowner is liable, in any event, up to £8 per ton in addition to any sum for which he may be liable to other claimants. If the value of the vessel after the disaster, together with her freight and accessories, is less than £8 per ton, then the owner's liability in respect of claims other than those for personal injury and loss of life, is limited to that lesser value. Provision is made, however, that the freight shall in all cases be deemed a fixed sum of 10 per cent of the value of the vessel at the commencement of the voyage. Thus in all cases, even when the ship is totally lost, and even though there may have been in fact no pending freight, a limitation fund is created equal to 10 per cent of the vessel's value at the commencement of the voyage.

The results of this proposed treaty, from the viewpoints of the shipowner, cargo owners, and other claimants, we may summarize as follows:

The shipowner benefits because—

1. His liability is limited in any event to £8 per ton with respect to claims other than those for personal injury and loss of life, and an additional £8 per ton with respect to the latter class of claims.

2. A limitation proceeding in one country is given recognition in all other countries parties to the convention.

All claimants benefit because

1. Even if the vessel is a total loss, and although there was no pending freight, a limitation fund is provided equal to 10 per cent of the value of the vessel at the commencement of the voyage.

2. The limitation fund also receives any compensation for material damage sustained by the vessel since the beginning of the voyage and not repaired, and any general average contributions with respect to the same.

3. In the event of more than one accident on the same voyage the diminution of value so caused is not taken into account in considering claims connected with previous accidents.

4. The shipowner is not permitted to secure exoneration by the surrender of his vessel, but is compelled to prove its value.

5. A separate fund for personal injury and loss of life claimants of £8 per ton in every case.

The outstanding features of the changes proposed in existing American law

are:

1. The limitation of the shipowner's liability to £8 per ton, in respect of claimants other than personal injury or loss of life claimants.

2. The creation of a fund of 10 per cent of the value of the ship at the commencement of the voyage, even in cases of total loss.

3. The abolition of the right to surrender the ship.

4. The creation of a fund of £8 per ton to pay personal injury and loss of life claims. This not only insures compensation to such claimants, but benefits other claimants by decreasing the number of claimants with whom they must share the limitation fund available to them.

5. The establishment of a uniform system of limitation of liability to be internationally recognized and respected.

We recognize the difficulties that may arise in the practical administration of this convention, particularly in cases where claims are asserted in the courts of different nations; but we believe that these difficulties are not insurmountable, and may properly be left to be remedied as they arise, by subsequent conference. The ship mortgage convention, as finally adopted, follows the general principles of our merchant marine act, in so far as that statute relates to mortgages. It provides for the priority of certain maritime liens-in general, the same as the preferred maritime liens recognized by our ship mortgage act-which are to have precedence over the mortgage.

Every nation is left free to establish such system of nonpreferred maritime liens as it may deem proper. Maritime liens, whether of the preferred or nonpreferred class in existence prior to the recording of the mortgage, take precedence over the mortgage if entered in a public register, either at the port of the vessel's registry or at a central office in the country to which the vessel belongs, within a period of three months after the lien arose. Furthermore, all maritime liens cease to exist at the end of one year from the date on which they become enforce

able.

The result of these last two provisions is to further increase the marketability of vessels and their value as security without, as it seemed to the conference, unduly limiting the rights of claimants.

The importance of securing international recognition of ship mortgages is obvious. Without such recognition the value of ship securities is greatly impaired. While the ship mortgage convention can not be regarded as a complete and perfect document, we believe that supplemented by such national legislation as is permissible thereunder, it should commend itself to those interested in maritime affairs.

The subject of governmental immunity as to publicly owned ships was not formally laid before the conference by Belgium, because it became known that very few of the delegates had been instructed by their own governments on this matter.

Informally, and with unanimity the members of the Brussels Conference recorded their sympathy with the spirit of the resolution herein above quoted, passed at London; all agreed that the subject was one proper for international agreement and regulation.

The conference then adjourned, having appointed a sous commission (on which a place was reserved for the United States).

The object of this sous commission is to carry forward the work of the conference, to receive and consider further suggestions as to the matters embraced in the protocol and to draft for future consideration a convention relating to governmentally owned ships.

In conclusion, it is our opinion that the “Rules for the carriage of goods by " is a thing finished; it lies with the maritime nations of the world to take it or leave it. We think it ought to be taken.

sea

With respect to the question of governmental immunity, we think a fair beginning has been made, and believe that it should be followed by vigorous work in and through the sous commission appointed at the close of the conference.

We point out that the protocol, signed by us, provides that the draft conventions therein contained are adopted as the basis of conventions only; the exact terms whereof are to be decided by a future meeting of the conference, or through the usual diplomatic channels; and also reference is made in the protocol to the official report of conference proceedings. This procès verbal has not yet been received; and it must be considered in connection with this report.

It is our understanding that, possibly in conjunction with the sous commission, the officers of the conference at Brussels have in course of preparation final conventions to carry out the terms of the protocol, and that these conventions will be in due course submitted to the several participants in the Brussels Conference. Permit us to say in closing that the welcome extended to all delegates by the officers of the Belgian Government was both warm and genuine, while every effort was made to aid and further the objects of a meeting largely attended by men whose forbearing spirit of conciliation and reasonable compromise we recognize with deep appreciation.

Very respectfully,

DECEMBER 20, 1922.

EXHIBIT A.-LIST OF DELEGATES

CHARLES M. HOUGH.

NORMAN B. BEECHER.

(Not printed. The list of delegates to the conference at Brussels is given in the Protocol, published as the Appendix.)

EXHIBIT B.-RULES FOR THE CARRIAGE OF GOODS BY SEA

[As submitted to the Comité Maritime International, London, October 9-11, 1922]

In these rules

ARTICLE I.-DEFINITIONS

(a) "Carrier" includes the owner or the charterer, who enters into a contract of carriage with a shipper.

(b) "Contract of carriage" means a bill of lading or any similar document of title in so far as such document relates to the carriage of goods by sea.

' Appendix.

(c) "Goods" includes goods, wares, merchandise, and articles of every kind whatsoever except live animals and cargo which by the contract of carriage is stated as being carried on deck and is so carried.

(d) "Ship" includes any vessel used for the carraige of goods by sea.

(e) "Carriage of goods" covers the period from the time when the goods are loaded on to the time when they are delivered from the ship.

ARTICLE II.-RISKS

Subject to the provisions of Article VI under every contract of carriage of goods by sea the carrier in regard to the receipt, handling, loading, stowage, carriage, custody, care, unloading, and delivery of such goods shall be subject to the responsibilities and liabilities and entitled to the rights and immunities hereinafter set forth.

ARTICLE III.-RESPONSIBILITIES AND LIABILITIES

1. The carrier shall be bound before and at the beginning of the voyage to exercise due diligence to

(a) Make the ship seaworthy;

(b) Properly man, equip, and supply the ship;

(c) Make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage, and preservation.

2. Subject to the provisions of Article IV, the carrier shall properly and carefully handle, load, stow, carry, keep, care for, unload, and deliver the goods carried.

3. After receiving the goods into his charge the carrier or the master or agent of the carrier shall on demand issue to the shipper a bill of lading showing amongst other things:

(a) The leading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts, provided such marks are stamped or otherwise shown clearly upon the goods if uncovered, or on the cases or coverings in which such goods are contained, in such a manner as should ordinarily remain legible until the end of the voyage; (b) The number of packages or pieces, or the quantity, or weight, as the case may be, as furnished in writing by the shipper;

(c) The apparent order and condition of the goods:

Provided that no carrier, master, or agent of the carrier shall be bound to issue a bill of lading showing any description, marks, number, quantity, or weight which he has reasonable ground for suspecting do not accurately represent the goods actually received.

4. Such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with section 3, (a), (b), and (c).

5. The shipper shall be deemed to have guaranteed to the carrier the accuracy at the time of shipment of the description, marks, number, quantity, and weight, as furnished by him, and the shipper shall indemnify the carrier against all loss, damages, and expenses arising or resulting from inaccuracies in such particulars. The right of the carrier to such idemnity shall in no way limit his responsibility and liability under the contract of carriage to any person other than the shipper. 6. Unless notice of a claim for loss or damage and the general nature of such claim be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading, and in any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within two years after deliver of the goods or the date when the goods should have been delivered.

In the case of any actual or apprehended loss or damage the carrier and the receiver shall give all possible facilities to each other for inspecting and tallying the goods.

7. After the goods are loaded the bill of lading to be issued by the carrier, master, or agent of the carrier to the shipper shall, if the shipper so demands, be a "shipped” bill of lading, provided that if the shipper shall have previously taken up any document of title to such goods he shall surrender the same as against the issue of the "shipped" bill of lading, but at the option of the carrier

such document of title may be noted at the port of shipment by the carrier, master, or agent with the name or names of the ship or ships upon which the goods have been shipped and the date or dates of shipment, and when so noted the same shall for the purpose of this rule be deemed to constitute a "shipped" bill of lading.

8. Any clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to or in connection with goods arising from negligence, fault, or failure in the duties and obligations provided in this article or lessening such liability otherwise than as provided in these rules, shall be null and void and of no effect.

ARTICLE IV.-RIGHTS AND IMMUNITIES

1. Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped, and supplied. Whenever loss or damage has resulted from unseaworthiness the burden of proving the exercise of due diligence shall be on the carrier or other person claiming exemption under this section. 2. Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from:

(a) Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship.

(b) Fire.

(c) Perils, dangers, and accidents of the sea or other navigable waters.

(d) Act of God.

(e) Act of war.

(f) Act of public enemies.

(g) Arrest or restraint of princes, rulers, or people, or seizure under legal process.

(h) Quarantine restrictions.

(2) Act or omission of the shipper or owner of the goods, his agent, or representative.

(j) Strikes or lockouts or stoppage or restraint of labor from whatever cause, whether partial or general.

(k) Riots and civil commotions.

(1) Saving or attempting to save life or property at sea.

(m) Inherent liability for wastage in bulk or weight or inherent defect, quality, or vice of the goods.

(n) Insufficiency of packing.

(0) Insufficiency or inadequacy of marks.

(p) Latent defects not discoverable by due diligence.

(q) Any other cause arising without the actual fault or privity of the carrier or without the fault or neglect of the agents, servants, or employees of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents, servants, or employees of the carrier contributed to the loss or damage.

3. The shipper to the same extent as the carrier shall not be responsible for loss or damage sustained by the carrier or the ship arising or resulting from any of the causes particularized in the above section 2 under the headings (b), (c), (d), (e), (f), (g), (h), (j), (k), (p), and (q).

4. Any deviation in saving or attempting to save life or property at sea, or any deviation authorized by the contract of carriage (provided that such deviation shall be reasonable having regard to the service in which the ship is engaged), shall not be deemed to be an infringement or breach of these rules or of the contract of carriage, and the carrier shall not be liable for any loss or damage resulting therefrom.

5. Neither the carrier nor the ship shall be responsible in any event for loss or damage to or in connection with goods in an amount beyond £100 per package or unit, or the equivalent of that sum in other currency unless the nature and value of such goods have been declared by the shipper before the goods are shipped and have been inserted in the bill of lading.

By agreement between the carrier, master, or agent of the carrier and the shipper another maximum amount than mentioned in this paragraph may be fixed, provided that such maximum shall not be less than the figures above named.